Judge: Upinder S. Kalra, Case: 21STCV23729, Date: 2023-08-17 Tentative Ruling
Case Number: 21STCV23729 Hearing Date: August 17, 2023 Dept: 51
Tentative Ruling
Judge Upinder S.
Kalra, Department 51
HEARING DATE: June
7, 2023
CASE NAME: Yoon Ha Kang, et al. v. Kelly Nam
CASE NO.: 21STCV23729
MOTION
FOR SUMMARY ADJUDICATION
MOVING PARTY: Plaintiffs Yoon Ha Kang, Youn Ae Kang,
and Jinny Hyun Jin Kang
RESPONDING PARTY(S): Defendant Kelly Nam
REQUESTED RELIEF:
1. An
order granting summary adjudication as to the first and third causes of action.
TENTATIVE RULING:
1. Motion
for Summary Adjudication is DENIED, as to the first and third causes of action.
STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:
On June 28, 2021, Plaintiffs Yoo Ha Kang, Young Ae Kang, and
Jinny Hyun Jin Kang (“Plaintiffs”) filed a complaint against Defendants Kelly
Nam (“Nam” or “Defendant”) and all persons unknown, claiming legal or equitable
right, title, estate, lien, or interest in the property described in the
Complaint adverse to Plaintiffs’ title or any cloud upon Plaintiffs’ title, and
Does 1 through 20. (“Defendants”). The complaint alleged four causes of action:
(1) Quiet Title (Prescriptive Easement, (2) Declaratory and Injunctive Relief,
(3) Private Nuisance, and (4) Trespass and Ejectment. The complaint alleges
that the Plaintiffs have used shared driveway, an easement, since 2014, as the
Plaintiffs’ property has a narrow driveway that could lead to car damage. The
Defendants then sent a letter to the Plaintiffs stating that they were
trespassing when using the driveway.
On August 26, 2021, Defendant filed a Motion to Strike,
which was GRANTED, with leave to amend.
On January 14, 2022, Plaintiffs filed a First Amended
Complaint.
On February 28, 2022, Defendant filed a Motion to Strike.
On March 8, 2023, Plaintiffs filed an Ex Parte Application
to Compel Depositions of Defendant Kelly Nam, and Non-parties Chris Nam and
Jenny Nam. The Court denied the ex parte application, the indicated that the
matter would be heard as a noticed Motion.
On March 15, 2023, Plaintiffs filed a Motion to Compel.
On January 24, 2023, Defendant filed a Motion for Summary
Adjudication. On May 24, 2023, Plaintiffs filed an Opposition. On May 31, 2023,
Defendant filed a Reply.
EVIDENTIARY
OBJECTIONS
The court rules on Defendant’s
evidentiary objections as follows:
Exhibit 1: Declaration of Young Ae Kang
The court sustains Objections Nos.:
¶¶ 27
The court overrules Objections Nos.
¶¶ 3, 5, 7-12, 16-24, 26, 28, 29, B-D, H-K
Exhibit 2: Supplemental Declaration of Young Ae Kang
The court sustains Objections Nos.:
Ex. A
The court overrules Objections
Nos.: ¶¶ 3-8
Exhibit 3: Declaration of Young Mi Park
The court sustains Objections Nos.:
The court overrules Objections
Nos.: ¶¶ 4-8
Exhibit 4: Supplemental Declaration of Young Mi Park
The court sustains Objections Nos.:
The court overrules Objections
Nos.: ¶¶ 6-8
Exhibit 5: Declaration of Annie Kyunghee Hwang
The court sustains Objections Nos.:
The court overrules Objections
Nos.: ¶¶ 4-7
Exhibit 6: Supplemental Declaration of Annie Kyunghee
Hwang
The court sustains Objections Nos.:
The court overrules Objections
Nos.: ¶¶ 3-8
LEGAL STANDARD:
The purpose of a motion for summary
judgment or summary adjudication “is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c,
subdivision (c), requires the trial judge to grant summary judgment if all the
evidence submitted, and ‘all inferences reasonably deducible from the evidence’
and uncontradicted by other inferences or evidence, show that there is no
triable issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
“On a motion for summary judgment,
the initial burden is always on the moving party to make a prima facie showing
that there are no triable issues of material fact.” (Scalf
v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant or
cross-defendant moving for summary judgment or summary adjudication “has met
his or her burden of showing that a cause of action has no merit if the party
has shown that one or more elements of the cause of action . . . cannot be
established, or that there is a complete defense to the cause of action.” (Code Civ. Proc.,
§ 437c, subd. (p)(2).) “Once the defendant or cross-defendant has met that
burden, the burden shifts to the plaintiff or cross-complainant to show that a
triable issue of one or more material facts exists as to the cause of action or
a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary
judgment should be granted.” (Avivi v. Centro
Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.) “When
deciding whether to grant summary judgment, the court must consider all of the
evidence set forth in the papers (except evidence to which the court has
sustained an objection), as well as all reasonable inferences that may be drawn
from that evidence, in the light most favorable to the party opposing summary
judgment.” (Id. at p. 467; Code Civ.
Proc., § 437c, subd. (c).)
REQUEST FOR JUDICIAL NOTICE:
The Court may take judicial notice of the
existence of the records, but not the truth of matters asserted in such
records. (Sosinsky v. Grant (1992) 6
Cal.App.4th 1548, 1565). As a result, although the court may take judicial
notice that the documents exists, the Court may not take judicial notice of the
truth of the facts in the documents.
Additionally,
Evidence Code only allows the Court to take judicial notice of certain types of
documents. The court may take judicial notice of “official acts of the
legislative, executive, and judicial departments of the United States and of
any state of the United States,” “[r]ecords of (1) any court of this state or
(2) any court of record of the United States or of any state of the United
States,” and “[f]acts and propositions that are not reasonably subject to
dispute and are capable of immediate and accurate determination by resort to
sources of reasonably indisputable accuracy.” (Evid. Code § 452, subds. (c),
(d), and (h).) The Evidence Code does not allow the Court to take judicial
notice of discovery responses or parts of cases, such as depositions.
Defendant
requests that the Court take judicial notice of the following document:
1. Plaintiff’s
First Amended Complaint filed on July 14, 2022
Defendant’s Request for
Judicial Notice is GRANTED.
ANALYSIS:
1.
Quiet Title – Prescriptive Easement
Defendant argues that Plaintiffs’
cause of action for prescriptive easement cannot be met. Specifically,
Defendant argues that Plaintiffs cannot present evidence that the use of the
driveway was hostile and without permission. The use of the driveway became
hostile in 2020 when Defendant sent the letter to Plaintiffs to stop using the
driveway. (UMF 10) Additionally, Defendant states that Plaintiffs’ use of the
driveway was not hostile because Defendant and her predecessor gave permission
to Plaintiffs to use the driveway. (Motion 9: 22-24.)
Plaintiffs argue that Defendant has
failed to meet the burden that there are no triable issues of material fact.
Specifically, Defendant does not include any affidavits, declarations,
admissions, answers to interrogatories, depositions, or requests for judicial
notice to support her claim.” (Opp. 9: 18-19.) The only evidence provided is
the three letters between the parties, and there is no evidence presented
indicating that Defendant or her predecessors gave permission. (Id. at 23-25.) Even if Defendant met her
burden, Plaintiffs argue that there are triable issues of material fact.
Specifically, Plaintiffs have met the requirements for prescriptive easement:
Plaintiffs used the easement openly and notoriously since 2014, continuously
for over five years, hostile to the true owner, and the use was under a claim
of right. (PUMF 6-7, 10-12, UMF 9.)
“To establish the elements of a prescriptive
easement, the claimant must prove use of the property, for the statutory period
of five years, which use has been (1) open and notorious; (2) continuous and
uninterrupted; (3) hostile to the true owner; and (4) under claim of right.” (Hansen v. Sandridge Partners, L.P.
(2018) 22 Cal.App.5th 1020, 1032.)
The court finds that Defendant has not
met their burden of showing that the first cause of action for prescriptive
easement has no merit because Defendant has not shown that the element of hostile
to the true owner cannot be established. Here, Defendant has presented no
evidence that Plaintiffs had permission to use the Share Driveway. Defendant
purchased the land in February 2014 (UMF 5), Plaintiffs purchased in July 2014
(UMF 3), and since then, Plaintiffs have used the driveway as ingress and
egress. (UMF 9.) Defendant does provide letters from November 2020 and January
2021 and argues that this indicates the use became hostile in 2020. However,
Defendant does not provide any evidence as to the time between July 2014, when
Plaintiffs became the new owners, and November 2020, when Defendant sent the
initial letter, to indicate that the use was not hostile or that permission was
granted.
Assuming arguendo that Defendant
has met its burden, the Court finds that Plaintiff has satisfied its burden to
show that a triable issue of fact exists. The deposition of Defendant Nam
(which was provided by Plaintiffs, not Defendant) states that “when I purchased
the property, they were using it with the permission, so I had no reason to
object them from not using it so I continued to give them permission to
be using it as a neighborly accommodation.” (Ex. 5, Deposition Nam, pg. 35:
2-6.) However, the evidence indicates that Defendant purchased the property in
February 2014, five months before Plaintiffs purchased the property. Therefore,
Defendant stating that they were given permission from the “previous owner”
(Id. at pg. 37: `6-17), is nonsensical. Moreover, Defendant’s deposition
further states that she never gave them permission. Thus, even if she had
purchased the property after Plaintiffs did, which she didn’t, from July 2014
until December 2020, no permission was given by Defendant. (Deposition Nam, pg.
51: 17-19.) Therefore, a triable facts exists as to whether Plaintiffs’ use was
hostile to the owner.
Motion for Summary Adjudication
is DENIED, as to the first cause of action.
2.
Private Nuisance:
Defendant argues that this cause of
action fails because it is based on the prescriptive easement. Thus, because
Plaintiffs did not have a prescriptive easement, there can be no claim that
Defendant interfered with their property rights.
Plaintiffs argue that because Defendant
failed to meet its initial burden and there was a prescriptive easement,
Defendant also failed to meet its burden for this cause of action.
Even if Defendant did meet its
initial burden, Plaintiff argues that there are triable issues of material
fact. The basis for this claim is Defendant’s interference with the use of the
shared driveway. When Defendant erected the fence, it prevented Plaintiff from
using the driveway which resulted in damage of approximately $30,000 to provide
additional spaces. Moreover, erecting the fence has “effectively prevented
Plaintiffs from using their own portion of the Shared Driveway to access
Plaintiffs’ Parking Area.” (Opp. 18: 15-17.)
To establish a claim for private
nuisance the plaintiff must prove (1) an interference with the use and
enjoyment of the property, (2) the invasion of the interest in the use and
enjoyment of the land must be substantial, and (3) the interference must be
unreasonable. (Today's IV, Inc. v. Los
Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th
1137, 1176, reh'g denied (Oct. 25, 2022), review denied (Jan. 18, 2023).) “With
respect to the substantial damage element, the degree of harm is to be measured
by the effect the invasion would have on persons of normal health and
sensibilities living in the same community.” (Id.) Further,
With respect to the
unreasonableness element, the primary test for determining whether the invasion
is unreasonable is whether the gravity of the harm outweighs the social utility
of the defendant's conduct, taking a number of factors into account. Again the
standard is objective: the question is not whether the particular plaintiff
found the invasion unreasonable, but ‘whether reasonable persons generally,
looking at the whole situation impartially and objectively, would consider it
unreasonable.
(Id.)
Defendant’s argument for why this
cause of action is premised on the fact that there was no prescriptive
easement. As stated above, the Court rejected this argument as there was
sufficient evidence to establish a triable issue of material fact concerning whether
the use was hostile.
Taking that
into consideration, the Court finds that Defendant has met its initial burden
of showing that the cause of action for private nuisance has not merit because
Defendant has shown that the interference was not substantial or unreasonable.
The evidence presented indicates that Plaintiffs have the use of their own
driveway on the other side of the building. (Plaintiffs’ evidence, Ex. 1, part
of Young Ae Kang, Ex. D, picture of driveway.) Thus, once the defendant has met
its initial burden of demonstrating that the cause of action cannot be
satisfied, the burden shifts to the plaintiff to demonstrate that a triable
issue of material fact exists. Here, the Court finds that Plaintiff has met
their burden of demonstrating that a triable issue of material fact exists.
First, the driveway, as indicated in the pictures, is extremely narrow. The
Declaration of Young Mi Park indicates that using the narrow driveway resulted
in scraping the vehicle, a 2016 Honda Accord. Moreover, the pictures provided
indicate that the erected fence only allows 62 inches of space, which prevents
any car from fitting in the gap to access the Plaintiffs’ parking area. A
reasonable jury could find that erecting a fence to prevent an individual from
using the parking lot and forcing that individual to use a narrow driveway that
results in car damage is both substantial and unreasonable. Moreover, the
interference could be seen as substantial and unreasonable because Plaintiffs
were using the shared driveway for six years before Defendant sent the first
letter. Therefore, a reasonable jury could determine that preventing tenants
from sufficiently accessing a parking lot that is part of the property and
requiring those tenants to potentially damage their car is both a substantial
and unreasonable interference.
Therefore, the Motion for
Summary Adjudication is DENIED, as to the second cause of action.
CONCLUSION:
For the foregoing reasons, the
Court decides the pending motion as follows:
Motion for Summary Adjudication is
DENIED, as to both causes of action.
Moving party is to give notice.
IT IS SO ORDERED.
Dated: August
17, 2023 _________________________________ Upinder
S. Kalra
Judge
of the Superior Court